JOINT TRIBAL COUN. OF PASSAMAQUODDY TRIBE v. Morton

• Decision Date: 11 February 1975
• Docket Number: Civ. No. 1960.
• Citation: 388 F. Supp. 649
• Parties: JOINT TRIBAL COUNCIL OF the PASSAMAQUODDY TRIBE et al., Plaintiffs, v. Rogers C. B. MORTON, Secretary, Department of the Interior, et al., Defendants, and State of Maine, Intervenor.
• Court: U.S. District Court — District of Maine

388 F. Supp. 649

JOINT TRIBAL COUNCIL OF the PASSAMAQUODDY TRIBE et al., Plaintiffs, v. Rogers C. B. MORTON, Secretary, Department of the Interior, et al., Defendants and State of Maine, Intervenor.

Civ. No. 1960.

United States District Court, D. Maine, N. D.

January 20, 1975.

As Amended February 11, 1975.

COPYRIGHT MATERIAL OMITTED

Thomas N. Tureen, David C. Crosby, Barry A. Margolin, Calais, Me., Robert E. Mittel, Portland, Me., Stuart P. Ross, Washington, D. C., Robert S. Pelcyger, and David H. Getches, Boulder, Colo., for plaintiffs.

Peter Mills, U. S. Atty., Portland, Me., Floyd L. France, Chf. Litigation Section and Anthony S. Borwick, Asst. Atty. Gen., Civil Div., Dept. of Justice, Land & Natural Resources Div., Washington, D. C., for defendants.

OPINION AND ORDER OF THE COURT

GIGNOUX, District Judge.

Plaintiffs in this action are the Joint Tribal Council of the Passamaquoddy Indian Tribe and the Tribe's two governors, who are suing in their individual and official capacities and as representatives of all members of the Tribe. Defendants are the Secretary of the Interior, the Attorney General of the United States, and the United States Attorney for the District of Maine. The State of Maine has been permitted to intervene as a party defendant. Plaintiffs seek a declaratory judgment that the Indian Nonintercourse Act, 1 Stat. 137 (1790), now 25 U.S.C. § 177, forbidding the conveyance of Indian land without the consent of the United States, is applicable to the Passamaquoddy Tribe and establishes a trust relationship between the United States and the Tribe. This Court has jurisdiction under 28 U.S.C. § 1331, Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 94 S.Ct. 772, 39 L.Ed.2d 73 (1974), and declaratory relief is sought pursuant to 28 U.S.C. § 2201. Plaintiffs also invoke applicable provisions of the Administrative Procedure Act, 5 U.S.C. § 701 et seq. The case has been submitted upon a stipulated record, briefs and oral argument.

The Historical Background

The Joint Tribal Council of the Passamaquoddy Tribe is the official governing body of the Passamaquoddy Tribe, a tribe of Indians residing on two reservations in the State of Maine. It is stipulated that since at least 1776 the present members of the Tribe and their ancestors have constituted and continue to constitute a tribe of Indians in the racial and cultural sense.

Plaintiffs allege that until 1794 the Passamaquoddy Tribe occupied as its aboriginal territory all of what is now Washington County together with other land in the State of Maine. During the Revolutionary War, the Tribe fought with the American colonies against Great Britain. In 1790, in recognition of the primary responsibility of the newly-formed Federal Government to the Indians in the United States, Oneida Indian Nation v. County of Oneida, supra at 667, 94 S.Ct. 772; United States v. Sante Fe Pacific R. Co., 314 U.S. 339, 345, 347-348, 62 S.Ct. 248, 86 L.Ed. 260 (1941), the First Congress adopted the Indian Nonintercourse Act, which as presently codified, 25 U.S.C. § 177, provides in pertinent part:

No purchase, grant, lease, or other conveyance of lands, or of any title or claim thereto, from any Indian nation or tribe of Indians, shall be of any validity in law or equity, unless the same be made by treaty or convention entered into pursuant to the Constitution.¹

Plaintiffs allege that in 1794, four years after passage of the 1790 Nonintercourse Act, the Commonwealth of Massachusetts, Maine's predecessor in interest², negotiated a treaty with the Passamaquoddies, by which the Tribe ceded to Massachusetts practically all of its aboriginal territory. It is further alleged that out of the 23,000 acres which the 1794 treaty reserved to the Tribe, Maine and Massachusetts have sold, leased for 999 years, given easements on, or permitted flooding of approximately 6,000 acres. The complaint asserts that the United States has not consented to these transactions and therefore that they violated the express terms of the Nonintercourse Act.

Since the United States was organized and the Constitution adopted in 1789, the Federal Government has never entered into a treaty with the Passamaquoddy Tribe, and the Congress has never enacted legislation which specifically mentions the Passamaquoddies. Furthermore, since 1789, the contacts between the Federal Government and the Tribe have been sporadic and infrequent. In contrast, the State of Maine has enacted comprehensive legislation which has had a pervasive effect upon all aspects of Passamaquoddy tribal life. The stipulated record clearly shows that the Commonwealth of Massachusetts and the State of Maine, rather than the Federal Government, have assumed almost exclusive responsibility for the protection and welfare of the Passamaquoddies.³

The Present Action

On February 22, 1972 representatives of the Passamaquoddy Tribe wrote to the Commissioner of the Bureau of Indian Affairs, Department of the Interior, and requested that the United States Government, on behalf of the Tribe, institute a suit against the State of Maine, as a means of redressing the wrongs which arose out of the alleged unconscionable land transactions in violation of the Nonintercourse Act. The letter urged that the requested action be filed by July 18, 1972, the date as of which such an action would be barred by 28 U.S.C. § 2415(b), a special statute of limitations for actions seeking damages resulting from trespass upon restricted Indian lands.⁴ On March 24, 1972 the Commissioner recommended to the Solicitor of the Department of the Interior that the litigation be instituted and advised the Solicitor that 28 U.S.C. § 2415(b) might bar a suit after July 18, 1972. Defendants, however, despite repeated urgings by representatives of the Tribe, failed to take any action upon their request.

On June 2, 1972 plaintiffs filed the present action seeking a declaratory judgment that the Passamaquoddy Tribe is entitled to the protection of the Nonintercourse Act and requesting a preliminary injunction ordering the defendants to file a protective action on their behalf against the State of Maine before July 18, 1972. Following a hearing on June 16, 1972 the Court ordered defendants to decide by June 22, 1972 whether they would voluntarily file the protective action sought by plaintiffs. In addition, the Court directed defendants, in the event their decision was in the negative, to state their reasons for so deciding and to show cause on June 23, 1972 why they should not be ordered to bring suit. On June 20, 1972 the Acting Solicitor of the Department of the Interior advised the Assistant Attorney General, Land and Natural Resources Division, Department of Justice, by letter, that no request for litigation would be made. The reasons, as stated in the letter, were as follows:

As you are aware, no treaty exists between the United States and the Tribe and, except for isolated and inexplicable instances in the past, this Department, in its trust capacity, has had no dealings with the Tribe. On the contrary, it is the States of Massachusetts and Maine which have acted as trustees for the tribal property for almost 200 years. This relationship between the Tribe and the States has apparently never been questioned by the Tribe until recently.

* * * * * *

In view of the Court's Order of June 16, 1972, requesting it be advised of the Secretary's decision on the Tribe's request by June 22, 1972, this Department has again reviewed its position and has again determined that no request for litigation should be made.

The Department does not reach its decision lightly. On the one hand, we are aware that the tribe may thus be foreclosed from pursuing its claims against the State in the federal courts. However, as there is no trust relationship between the United States and this tribe, we are led inescapably to conclude that the Tribe's proper legal remedy should be sought elsewhere. * * * (emphasis supplied).

On June 22, 1972, by means of a written Notice filed with the Court, enclosing a copy of the June 20, 1972 letter from the Department of the Interior to the Department of Justice, defendants notified the Court that they would not voluntarily file the requested action. The Notice stated:

You are hereby further notified that consistent with the decision of the Interior Department, the Assistant Attorney General in charge of the Land and Natural Resources Division, Department of Justice, acting under and by delegation from the Attorney General, has decided not to institute an action against the State of Maine as requested by plaintiffs' counsel. (emphasis supplied).

At the conclusion of the show cause hearing held on June 23, 1972 the Court ordered defendants to file the requested protective action against the State of Maine prior to July 1, 1972.⁵ On June 29, 1972 defendants complied with the Court's order by filing an action, United States v. Maine, Civil No. 1966 N.D., in this Court.⁶

On February 1, 1973 plaintiffs filed an amended and supplemental complaint in the present action, abandoning their original request for injunctive relief and seeking only a declaratory judgment that the Passamaquoddies are entitled to the protection of the Nonintercourse Act. On June 17, 1973 the State of Maine was permitted to intervene in the action as a party defendant. On July 15, 1974, following the completion of discovery, plaintiffs filed a second amended and supplemental complaint.

The action is presently before the Court on the basis of plaintiffs' second amended and supplemental complaint, defendants' and intervenor's answers thereto, a stipulated record, briefs and oral argument.

The Issues Presented by the Present Action

In their second amended and supplemental complaint, plaintiffs have dropped their original request for injunctive relief and seek only a declaratory judgment. Their basic position is that the Nonintercourse Act applies to all Indian tribes in the United...